Employee Leave (FMLA and ADA)

Judge_Gorsuch_official_portraitA colleague recently brought to my attention a 2014 employment case written by then-Circuit Judge Gorsuch for a panel of the U.S. Court of Appeals for the 10th Circuit – a particularly interesting opinion that may give us hints as to how Justice Gorsuch may rule in future employment cases before the Supreme Court.

In Hwang v. Kansas State University, an assistant professor was diagnosed with cancer and received a six-month leave of absence. (In the opinion, Judge Gorsuch specifically noted it was a “(paid) leave.” Whether or not it was paid is irrelevant to the legal analysis, but his express mention of payment suggests approval of the employer’s actions as exceeding the norm). Towards the end of the six months, she requested additional leave of apparently another few months. The University, however, had an inflexible policy limiting leave to six months, and it denied her request. The professor then sued, claiming that the University’s inflexible leave policy violated the Rehabilitation Act. Continue Reading Justice Gorsuch and the ADA?

moneyAs you may have heard, the Maryland General Assembly has passed a bill that requires employers with 15 or more employees to provide up to 5 days of paid sick leave and smaller employers to provide unpaid sick leave. The bill, known as the Maryland Healthy Working Families Act, now heads to the Governor’s desk. Governor Hogan has promised to veto it and the lawmakers state that they will override the veto. But politics aside, what is the actual status of this bill?

There are a number of possible scenarios regarding this bill, which we will discuss in order of likelihood. Continue Reading Maryland’s General Assembly Just Passed Paid Sick Leave – Now What?

Rook with scarfI have previously blogged about the fact that the Family and Medical Leave Act and state counterparts don’t allow employees to take time off to care for an ill or dying pet (see my Pet Bereavement Leave? post here). Recently, however, I heard about a sick leave ordinance – in Emeryville, California – that allows employees to take time off to care for certain animals! So in addition to taking sick leave because of the illness or injury of the employee or the employee’s family member, the employee may also take this leave “to aid or care for a guide dog, signal dog, or service dog”!!! And the dog doesn’t even have to belong to the employee – it can be the family member’s dog! Continue Reading Sick Leave for Your Dog?


On a related note to my previous post on pet bereavement leave, my daughter told me about another leave available to those dog-crazy folks in the U.K – “paw-ternity leave.” (Which is very different than “peternity” leave – another name for pet bereavement leave!) Essentially, this type of leave is a maternity/paternity leave for pets.

As first reported by the Mirror, a research study by pet insurance provider Petplan found that almost 1 in 20 new pet owners in the U.K. are offered “paw-ternity” leave by their employers. This leave can be used to settle in and care for a new pet, vet appointments, training, etc. It ranges from a few hours to a few weeks, and is provided in addition to the worker’s usual vacation leave allotment. The article specifically identifies two different companies that formally provide this type of leave – pet food manufacturer Mars Petcare and IT company Bitsol Solutions. Continue Reading “Paw-ternity” Leave?

RookFollowing up on my last post about menstrual leave, I heard about another odd leave being offered by a few employers – pet bereavement leave (I also saw a reference to “peternity” leave). Unlike menstrual leave, this is not legally required in any country. But apparently it’s not entirely uncommon among those dog-crazy folks in the U.K. In the U.S., however, there are only a few companies that formally offer this type of leave, as a recent CBS Miami news story notes. In particular, Kimpton Hotels and Restaurants allows managers to grant up to three days off for grieving pet parents, while pet insurance company Trupanion grants one day of bereavement leave.

Why is the leave needed? Sandra Grossman, a pet loss counselor, told the Wall Street Journal in an article on “The Challenge of Grieving for a Pet at Work,” most grieving pet owners need up to a week away from work to get over the initial shock. In addition, a survey referenced in that article noted that nearly 1 in 3 people feel grief and sadness for at least 6 months after the pet’s death.

Continue Reading Pet Bereavement Leave?

Last week, I heard about a British company, Coexist, that is planning to develop a “period policy” to provide menstrual leave to its female employees. As a female employment attorney, I’m a strong believer in equal rights for women, but this notion struck me as so very … odd. Initially, I wasn’t quite sure what to make of it, but intuitively it just seemed like a bad idea to me.

So I did a little research, and it turns out that menstrual leave is actually a legal right in certain Asian countries. In 1947, Japan was the first to pass a menstrual leave law. Since then, Indonesia, the Philippines, South Korea and, most recently in 2013, Taiwan, have also enacted such laws. The laws vary as to whether the leave is paid, half-paid, or unpaid, and how much time off may be taken (e.g. as needed each month, X days per month, X days per year). These laws, however, have proven to be controversial, and their effectiveness has been questioned.red-dot

Many argue that the laws perpetuate stereotypes of women as the weaker sex. Some male rights activists (yes, they exist) argue that these laws discriminate against men. One commentator, Tim Worstall at Forbes.com, noted that a new type of paid leave will increase employer costs – and the fact that the paid leave is only available to female employees will likely exacerbate the gender pay gap. Many employers in those countries ignore the laws. And, frankly, it seems that most women are afraid to come forward to ask for menstrual leave, for various reasons – embarrassment, not wanting to burden fellow employees, fear of discrimination or retaliation, etc.

Continue Reading Menstrual Leave – Really?

Last time I talked about how to determine if an employee is a “key employee” under the Family and Medical Leave Act. This time, we’re going to talk about the actual steps you need to take in order to invoke this exemption.golden-key

There are very specific, mandatory notice requirements that apply. 29 C.F.R. Section 825.219(a) requires an employer to notify the employee of the employee’s status as a “key employee,” that it may deny reinstatement following FMLA leave if it determines that substantial and grievous economic injury will occur, and the potential consequences with respect to the maintenance of health benefits. This requirement may be met by checking off the appropriate provision on the DOL’s model “Notice of Eligibility and Rights & Responsibilities,” WH-381. (Are you using the DOL’s model forms? If not, why not? They’re actually pretty good – and I have never seen an individualized employer-prepared form that was any better! In fact, most employer-prepared forms that I’ve seen have various problems. Big ones.)

The employer should give this first notice as soon as it is able to determine that the employee is a key employee. Hopefully, this should happen when the employee gives notice of the need for leave, but may occur after the leave begins if the employer needs time to make that determination. Please note that if the employer fails to give timely notice, the employer will not be able to deny restoration – even if there is substantial and grievous economic injury!!!

Continue Reading The Rules on the Key Employee Exemption Under the FMLA (Part II)

I’m an Family and Medical Leave Act geek – I find the twists and turns and intricacies of this law and its regulations just fascinating. ( I know, that’s really geeky). I was recently advising a client on the key employee exemption under the FMLA, which reminded me of how technical the rules are with regard to this particular issue. I thought some of you might appreciate a primer on this exemption – what it is and how to apply it.golden-key

Under the FMLA regulations, a key employee may be denied restoration to his job position if such restoration would cause “substantial and grievous economic injuries to the employer’s operations.” 29 C.F.R. Section 825.216. A key employee is a salaried FMLA-eligible employee who is among the highest paid 10 percent of all the employees employed by the employer within 75 miles of the employee’s worksite. (Keep in mind that overtime payments to non-exempt employees can increase their income significantly and throw off the top 10%!)

The regulations discuss what “substantial and grievous economic injury” means. Of particular note, the “substantial and grievous economic injury” must be based on the restoration, and “not whether the absence of the employee will cause such substantial and grievous injury.” (Emphasis added). 29 C.F.R. Section 825.216. This is a very important distinction – several courts have found the employers failed to establish “substantial and grievous economic injury” where the employer focused on the effect of the employee’s absence rather than the impact of the employee’s restoration on its operations. Let me repeat that – FOCUS ON THE IMPACT OF THE RESTORATION, NOT THE ABSENCE!

Continue Reading The Rules on the Key Employee Exemption Under the FMLA (Part I)

The U.S. Supreme Court’s decision in Obergefell v. Hodges, in which it held that same-sex couples have a constitutional right to marry, made headlines.  This decision has a practical impact on employers – particularly on those with operations in states that to date had not recognized the validity of same-sex marriages.

There are a number of employment rights and benefits that are affected by the Supreme Court’s ruling. These include the following:

  • Federal Family and Medical Leave Act leave, as well as family/medical-type leaves under State laws. The Department of Labor had previously announced a “place of celebration” rule, meaning that if the marriage is valid in the State in which the marriage took place, the FMLA will protect an employee needing leave to care for his or her spouse, regardless of where the employee lives (including in those States that do not recognize same-sex marriage). This ruling, however, means that leave rights under State laws, which may not have previously applied, must be extended to same-sex spouses as well. This includes such statutorily-provided leaves such as sick leave, family and medical leave, domestic violence leave, military family leaves, and Flexible Leave Act leaves (which enable employees to use paid leave for purposes of family illness).
  • Employment policies. If your policies provide other rights for spouses, such as bereavement leave, same-sex spouses will be covered. You should also update any policy definitions to ensure that same-sex spouses are not excluded. Remove any references to “husband” or “wife,” and replace them with “spouse.”
  • Employee benefits. Your insurance, pension, and retirement plans may need to be updated. You should consult your plan administrators and benefits attorneys regarding any required changes. In addition, employees may wish to change beneficiary designations. COBRA will apply to same-sex spouses.
  • Employee contact information. Employees may also wish to update basic contact information as to their spouses.
  • Employee tax information. In addition, employees may wish to adjust withholding information to account for a now-legally recognized same-sex spouse. Income imputed from employer contributions for a same-sex spouse’s health coverage will not be subject to federal income taxes. Employees will also be able to use flexible spending accounts to cover a same-sex spouse’s medical costs on a pre-tax basis.
  • Marital status discrimination. Same-sex spouses will be entitled to protection under State marital status discrimination laws.

Under the Family and Medical Leave Act (FMLA), an employer can (and should) require a certification from a health care provider to support an employee’s or the family member’s need for leave because of a serious health condition. This certification is the basis for determining whether the employee has a serious health condition requiring leave, which is then covered, and therefore protected, by the FMLA. It sets forth the parameters of what leave is medically required. Employers are, of course, entitled to rely on the certification – but not to the exclusion of all other information, as one employer learned to its great sorrow.

(Quick refresher – a “serious health condition” under the FMLA  includes incapacity of more than three consecutive days that also involves a visit to a health care provider and a supervised regimen of continuing treatment.  It also includes chronic conditions, which can be episodic, requiring at least two doctor’s visits a year for treatment. These episodes do not have to last for more than three days.)

In Smith v. AS America, Inc., a plant employee injured his back and was absent from work for three days. He submitted a request for FMLA leave, which included an FMLA certification form. The form  stated the employee had a back condition that would require treatment visits at least twice a year. The form further stated there could be episodic flare-ups of the condition every three months, lasting 3-5 days per episode, during which time the employee would not be able to work. The employee’s three-day absence was recorded as FMLA leave.

The following month, on February 5, the employee again strained his back. He reported to work on February 6, but had to leave because of his back pain. He called out on February 7 and 8, each time stating that his absence should be covered by his prior FMLA certification. The employee visited a health care provider on February 7, and the provider wrote a note stating that he had been seen on February 7 and excusing him from work on February 8. When the employee went to the plant on February 8 to submit his note, however, he was told that he was being terminated under the attendance policy for leaving early on February 6, and calling out on February 7 and 8. He was also given documents denying his January application for FMLA leave (even though the leave had already been recorded as FMLA!  What ?!!)  On February 11, although he had already been terminated, the employee submitted another FMLA request with a certification specifying that his back condition required continuing treatment, that it would cause episodic flare-ups, and that the current period of incapacity was February 7-9.

In the ensuing lawsuit, the employee contended that his February absence qualified as a serious health condition both because he had an incapacity lasting more than three days with treatment from a health care provider and because it was a chronic condition. With regard to the first argument, the employer argued that the certification stated that the incapacity lasted for only three days – February 7-9.  Therefore, it did not meet the relevant definition of a serious health condition, and the employer was entitled to deny FMLA coverage. The court, however, noted that the employer could not rely on the certification “to the exclusion of all other evidence it had at the time.” The court noted that the employer knew the employee had injured his back on February 5 and could not work on February 6. The employee, moreover, in calling out, had referenced his January FMLA application. Based on this information, the court found that the employer “should have reasonably concluded” that the period of incapacity lasted from February 5 at least through February 9 – more than 3 days.

Furthermore, the court noted, the form does not require the health care provider to provide exact dates for the incapacity – it seeks the “approximate date the condition commenced” and the “probable duration of the condition,” and further requests the provider to “estimate the beginning and ending dates for the period of incapacity.” In addition, the court noted that the employee was fired even before submitting the certification, although his similar request the prior month for FMLA leave for a back injury had been granted. The court thus found “disingenous” (at the very least!) the employer’s claim that it relied on the February certification to deny FMLA leave.

Moreover, the court noted that the employee was entitled to FMLA leave based on a chronic condition, as indicated in both FMLA certifications. The court rejected the employer’s argument that the condition cannot be considered chronic until it has lasted for a number of years. As the court logically noted, chronic conditions “undoubtedly have a starting point.” As long as the provider predicts that the condition will recur over an extended period of time, the condition could qualify as a FMLA-covered chronic condition.

So, bottom line, employers should be reasonable when they rely on those health care provider certifications, and take into account other information they may have. If there is some discrepancy between the information and the certification, because the certification is vague, ambiguous or unclear, the employer could deem the certification insufficient and request, in writing, that the employee submit a sufficient certification. Assuming that the certification is technically sufficient, but is hard to read or the meaning is unclear, the employer could seek clarification of the certification, as permitted by the FMLA regulations. Furthermore, if the employer doubts the validity of the certification based on the other information available to it, the employer can require a second (and possibly a third) opinion. What the employer should not do is simply reject the certification!